State ex rel. Finley v. District Court of First Judicial Dist. in and for Lewis and Clark County

• Decision Date: 28 February 1935
• Docket Number: 7409.
• Citation: 43 P.2d 682,99 Mont. 200
• Parties: STATE ex rel. FINLEY v. DISTRICT COURT OF FIRST JUDICIAL DIST. IN AND FOR LEWIS AND CLARK COUNTY et al.
• Court: Montana Supreme Court

43 P.2d 682

99 Mont. 200

STATE ex rel. FINLEY v. DISTRICT COURT OF FIRST JUDICIAL DIST. IN AND FOR LEWIS AND CLARK COUNTY et al.

No. 7409.

Supreme Court of Montana

February 28, 1935

Original proceeding in the nature of an application for a writ of supervisory control by the State, on the relation of E. J Finley, directed against the District Court of the First Judicial District of the State of Montana, in and for the County of Lewis and Clark, and the Honorable A. J. Horsky, a judge thereof.

Writ issued.

W. T Pigott and William Scallon, both of Helena, for appellant.

T. B Weir and Harry P. Bennett, both of Helena, for respondents.

STEWART Justice.

This is an original proceeding in the nature of an application for a writ of supervisory control, directed against the district court of Lewis and Clark county and one of the judges thereof.

Lena Cook, a resident of Lewis and Clark county, Mont., died on August 5, 1933. She left a last will and testament, which was duly probated in the district court of Lewis and Clark county on August 21, 1933. Her husband, Frank Hervey Cook, was named in the will as principal legatee and executor and was thereafter appointed by the court. He qualified and proceeded with the administration in Montana. He caused notices to the creditors of decedent to be published in accordance with law, requiring them to present their claims to him at Helena, Mont., within a period of ten months, which expired on June 22, 1934. Decedent owned property in Montana and also in California. On September 11, Frank Hervey Cook was appointed ancillary executor, or executor of Lena Cook's will in an ancillary administration of her estate in Ventura county, Cal. Notice to creditors was likewise published in the ancillary proceedings in California.

The petition for the writ recites the foregoing facts, and, in addition thereto, sets forth that deceased on December 26, 1931, at Seattle, Wash., made, executed, and delivered to one E. J. Finley, relator in this proceeding, her certain promissory note for $7,500, payable at Seattle; that there is unpaid thereon the sum of $6,300 besides interest; that relator has never been a resident of the state of Montana and has never been therein; that he is a resident of the city of Los Angeles, Cal.; that he did not learn of Lena Cook's death or that her estate was being administered, and that he had no notice of the notice to creditors given by the Montana executor, by reason of being out of the state of Montana, until on or about June 28, 1934, which was after the expiration of the ten months' period for presenting claims; that in July, 1934, he prepared in proper form his creditor's claim for the balance, and accompanied it with a copy of the note, and in August, 1934, he presented the claim to the executor in Montana for allowance; that, in addition to the ordinary form of claim, he attached his affidavit showing that he learned of the death of the deceased and of the administration of her estate for the first time on or about the 28th of June, 1934; that in connection with the claim relator prayed for an order permitting it to be presented to the executor and received by him with the same effect as if presented before the expiration of the time for presenting claims fixed by the notice to creditors, and asked that the claim be acted upon in due course.

The claim was presented under the provisions of section 10173, Revised Codes 1921. This section, in addition to providing for the presentation of claims in ordinary form, and within specified limits, carries a special provision which reads as follows: "When it is made to appear by the affidavit of the claimant, to the satisfaction of the court or judge, that the claimant had no notice [of the publication of the notice to creditors] as provided in this chapter, by reason of being out of the state, it may be presented at any time before an order of distribution is entered."

The petition sets forth the fact that after the claim was presented to the district judge with request for action in accordance with the statute, he by order denied the application on the ground that notice to creditors had been given in the state of California in the ancillary proceedings, and that relator was a resident of that state and had never resided in the state of Montana, and was therefore without right to claim advantage of the special provision of section 10173, supra. The petition further avers that there is no appeal from the order of the district judge, and that there is no plain, speedy, or adequate remedy available to relator, except by the interposition of this court by writ of supervisory control.

Answer was filed, alleging that this court lacked jurisdiction to grant the writ because relator has a plain, speedy, and adequate remedy under the provisions of sections 10176 and 9731, Revised Codes of 1921, and chapter 11 of the Session Laws of 1925, p. 12; that relator's claim is barred by the provisions of section 10173, supra; that the petition discloses that the claim was not presented until August, 1934, after the time for presenting claims had expired; that it fails to show that relator had no notice, as provided in chapter 40 of the Code of Civil Procedure of 1921 (Rev. Codes 1921,§ 10170 et seq.), of the time for filing creditors' claims in the estate; that the petition affirmatively shows notice given in the state of California, during all of which time the petitioner was present in that state; that it further fails to disclose that there was not sufficient property of the estate in the state of California to pay relator's claim and the claims of other creditors in that state; and that it fails to show that there is sufficient property belonging to the estate in Montana to pay the claims of Montana creditors of the estate.

We are of the opinion that the matter is properly before this court in the present proceeding. We do not believe that there is any appeal from the order of which complaint is made. It is not one of the appealable orders enumerated in section 9731 of the Code of Civil Procedure of 1921 (Rev. Codes). By the provisions of section 2 of article 8 of the Constitution, this court is granted general and supervisory control over all inferior courts under such regulations and limitations as may be prescribed by law. In the recent case of State ex rel. State Bank of Townsend v. District Court, 94 Mont. 551, 25 P.2d 396, 398, this court said: "We think one of them (the functions of the writ of supervisory control) is to enable this court to control the course of litigation in the inferior courts where those courts are proceeding within their jurisdiction, but by a mistake of law, or willful disregard of it, are doing a gross injustice, and there is no appeal, or the remedy by appeal is inadequate."

The question, then, resolves itself into a construction of the provisions of section 10173, supra. There could be no doubt about the right of relator to present his claim to the Montana executor for appropriate action under that section if there had been no ancillary administration in the state of California. What was the effect of the ancillary proceedings in California upon the right of...